The path to settlement

The path to settlement of the Agent Orange litigation is told in the language of the fee petition which Judge Weinstein insisted Yannacone submit to explain his “contribution” to the settlement of class-action. The material on this page is taken from that fee petition.

The Trust Fund concept

After hearing the veterans during the settlement hearings, it became obvious that Yannacone’s original Trust Fund proposals were the only way to fairly and adequately administer the Agent Orange Settlement Fund. The Agent Orange Class Assistance Foundation is the very goal that Yannacone sought to obtain by refiling the Reutershan case as a class action. Unfortunately, it was not administered as Yannacone envisioned is certainly not for the benefit of the Vietnam combat veterans on whose behalf the Agent Orange litigation was brought.
Recovery by and on behalf of the class of all the afflicted Viet Nam veterans was the goal and the objective of the complaints Yannacone filed. Individual claims could be made later against the trust fund or in subsequent damage assessment actions in local courts where proximate cause would be the principle issue.

Yannacone was well aware, at the very outset of the litigation that in the context of the conventional accepted Anglo-American law of torts it would be difficult to establish proximate cause on behalf of any individual veteran until fault and cause-in-fact (generic causation) first had been established in the context of a class action.

All of the individual cases were eventually dismissed as Yannacone predicted they would be in the absence of a class action judgment establishing fault and generic causation.

To the extent that the “chump change” distributions from the settlement fund can be considered a benefit, the neediest members of the class have benefited from Yannacone’s efforts. Without Yannacone’s efforts to direct the Agent Orange Litigation toward a trust fund recovery, these veterans would have received nothing.
The entire class of Viet Nam veterans and their families are the beneficiaries of both Yannacone’s original equitable trust fund concept of recovery in the Agent Orange Litigation and his vigorous conduct of the litigation as a class action over the objections of not just the corporate defendant war contractors, but most of the organized plaintiffs’ personal injury bar, including many of the individuals who later bought their way onto Judge Weinstein’s Agent Orange Plaintiffs’ Management Committee. The Plaintiffs’ Management Committee militantly opposed any Class Assistance Foundation.

The Path to Settlement began with refiling the Reutershan Complaint as a class action

The original title of the common or generic complaint for all the Agent Orange cases clearly sets forth the claims of the Vietnam combat veterans.

In the matter of the claims for damages attributable to the phenoxy aliphatic herbicides contaminated with toxic synthetic organic chemicals such as 2,3,7,8-tetrachloro-dibenzo-p-dioxin (TCDD or “dioxin”) manufactured, formulated, advertised, marketed, promoted and sold by the corporate defendants by
Certain named veterans, individually and on behalf of a number of veterans all those so unfortunate as to have been and now to be similarly affected and situated at risk from the toxic effects of phenoxy herbicides manufactured, formulated, advertised, marketed, promoted and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals; (Classes designated 1, and 2); and

Certain named wives of veterans, individually and on behalf of all those wives of veterans so unfortunate as to have been similarly affected and situated at risk as a result of the toxic effects of phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals (Classes designated 6, 7, and 12); and

Certain named veterans now deceased, by their several legal representatives, individually and on behalf of all those so unfortunate as to have been similarly affected by the toxic effects of phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals (Class designated 5); and

Certain named widows of veterans now deceased, individually and on behalf of all those so unfortunate as to have been similarly widowed as a result of the toxic effects of phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals (Classes designated 6, 7, and 8); and

Certain named parents of veterans now deceased, individually and on behalf of all those so unfortunate as to have similarly lost their sons as a result of the toxic effects of phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals (Class designated 9); and

Certain named children individually and on behalf of all those children so unfortunate as to have been similarly affected and now at risk as a result of the toxic effects of phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals (Classes designated 13, 14, and 15); ;and
Certain named parents of children affected and now at risk as a result of the toxic effects of phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate defendants although known by them to be contaminated with toxic synthetic organic chemicals, each individually and on behalf of all those other parents and their children so unfortunate as to have been and now to be similarly situated at risk, not only during this generation but during those generations yet to come, from the toxic effects of such phenoxy herbicides manufactured, formulated, advertised, promoted, marketed and sold by said corporate defendants (Classes designated 10, 11, 12), Plaintiffs,
–against–
The Dow Chemical Company, Monsanto Company, Hercules Incorporated, Thomson-Hayward Chemical Company, Diamond Shamrock Corporation, Uniroyal, Inc, Thompson Chemicals, and Hoffman-Taft, a subsidiary of Syntex Corp., together with Hooker Chemical Company, a subsidiary of Occidental Petroleum Company, Defendants

The prayer for relief

In addition to the complex caption and heading for the Agent Orange Litigation in the refiled Reutershan class action complaint, the Court was presented with a unique prayer for relief by the veterans.

The equitable remedy of declaratory judgment.

Further equitable relief imposing a constructive or resulting. trust upon the corporate defendants and holding them to their fiduciary obligations as trustees of the public health safety and welfare.

The equitable remedy of injunction restraining the corporate defendants from continuing the advertising, promotion, marketing, and sale of phenoxy herbicides such as the 2,4,5–trichlorophenoxy aliphatics contaminated with toxic synthetic organic chemicals such as 2,3,7,8-tetrachloro-dibenzo-p-dioxin (TCDD or “Dioxin”).

The equitable remedy of restitution and the equitable procedure of appointing a conservator or trustee to the extent necessary to accumulate, manage, and administer a trust fund against which claims can eventually be paid from current earnings rather than the capital assets of the corporate defendants.

Veterans’ Goals & Objectives in the Agent Orange Litigation

The goals of the Viet Nam combat veterans were explicitly stated to the Court in MDL 381 Docket Document No. 0033 filed on 19 July 1979. The statements in Document 0033 were dictated by the veterans, their wives, and even some of their children. It was only slightly modified to comport with the style of a legal document.

The plaintiff veterans seek medical care and treatment of their own afflictions, but most cry out for medical care and treatment of the afflictions visited upon those of their children who have suffered developmental defects.

The plaintiff veterans do not want to be recipients of public assistance.

The plaintiff veterans, as tax payers, do not believe that they and all the other tax payers in the United States should bear the burden of the cost of the medical care and treatment they require as a result of the toxic effects of contaminated phenoxy herbicides manufactured, formulated, advertised, marketed, promoted, and sold by the corporate defendants.

The plaintiff veterans and their families seek to compel the corporate defendants to make restitution to the American people by reimbursing those federal and state agencies that have provided benefits, medical care and treatment to the plaintiff veterans and their families for conditions attributable to the toxic effects of contaminated phenoxy herbicides manufactured, formulated, advertised, marketed, promoted, and sold by the corporate defendants.

The plaintiff veterans and their families seek a resolution of the scientific controversy over the toxic effects of phenoxy herbicides contaminated with toxic synthetic organic chemicals such as the polychlorinated dibenzo-p-dioxins (PCDDs) and the polychlorinated dibenzo furans (PCDFs) fomented by the promotional efforts of the corporate defendants which manufactured, formulated, advertised, marketed, promoted, and sold such contaminated phenoxy herbicides.

The plaintiff veterans and their families seek to challenge the continuing claims of those corporate defendants still actively involved in the advertising, promotion, marketing, .and sale of phenoxy herbicides known to be contaminated with toxic synthetic organic chemicals such as the polychlorinated dibenzo-p-dioxins (PCDDs) and the polychlorinated dibenzo furans (PCDFs) that such contaminated phenoxy herbicides are “safe.”

The plaintiff veterans and their families seek to test those safety claims of the corporate defendants in the crucible of cross-examination before this Court of Equity not in administrative proceedings which have been dragging on for almost a decade since the Department of Defense recognized the danger inherent in contaminated phenoxy herbicides and discontinued their use as defoliants in Southeast Asia.

The plaintiff veterans who served our Country in Southeast Asia assert that the corporate defendants owed them a non-delegable fiduciary duty of care.

The plaintiff veterans seek punitive damages against the corporate defendants responsible for the advertising, promotion, marketing, and sale of phenoxy herbicides contaminated with toxic synthetic organic chemicals such as the polychlorinated dibenzo-p-dioxins (PCDDs) and the polychlorinated dibenzo furans (PCDFs) in an amount sufficient to convince corporate management they serve as trustees of the public health, safety and welfare to an extent commensurate with the economic power and technological resources of the corporations they manage.

2,400,000 veterans are not a statistically insignificant sample of the American population, considering that all of them were cert. denied to be in good health when they left this country for service in Southeast Asia and the fact that those who came home without direct traumatic injury from that service are now suffering many clinical and subclinical effects attributable to chemical toxicants cries out for equitable relief.

The plaintiff. veterans are aware of their unique position at risk as a result of their already significant exposure to phenoxy herbicides contaminated with polychlorinated dibenzo-p-dioxins (PCDDs) and polychlorinated dibenzo furans (PCDFs) and the bioaccumulative nature of the toxic effects associated with such exposure.

The plaintiff veterans and their families are now becoming aware that other widely used products such as the phenoxy herbicides pentachlorophenol (PCP) and its salts are also contaminated with polychlorinated dibenzo-p-dioxins (PCDDs) and polychlorinated dibenzo furans (PCDFs) and may represent significant additional risk to the plaintiff veterans and their families.

The plaintiff veterans and their families are appalled at the lack of concern by federal regulatory agencies for their unique position as a population already exposed to contaminated phenoxy herbicides and manifesting clinically ascertainable symptoms of such exposure.

As a result of the settlement of the Agent Orange Litigation, a substantial number of the goals and objectives of the Viet Nam veterans and their families were attained because the settlement plan was consistent with Yannacone’s original vision of the litigation.

Yannacone was the sole and exclusive architect of both the theory of liability and the trust fund concept of recovery. He was the master builder who accomplished what no other lawyer had ever succeeded in doing before. In fact, he did what no other lawyers considered possible. The settlement plan he envisioned and pleaded in the ad damnum clause and prayer for relief of the amended Reutershan complaint was the basic blueprint for the settlement plan that Judge Weinstein eventually adopted. Yannacone saw what had to be done for the Viet Nam veterans and their families and found the only possible way to do it.

Public Information and Education in the Agent Orange Litigation

The Agent Orange Litigation became an object of national attention shortly after the Reutershan case was refiled as a class action on 8 January 1979. By March, 1979, it was necessary to represent the interests of the Viet Nam combat veterans to the Congress of the United States, the several state legislatures, and the American people because of the massive public relations campaign of disinformation that was being conducted by the war contractors who were the corporate defendants in the Agent Orange Litigation.

It was hypocritical for Judge Weinstein to discount the value to the class of having its lead counsel and courtroom advocate competent to inform the public about the plight of the Viet Nam veterans and their families, the dangers of dioxin, and the threat of diseases such as melioidosis, while all the while keeping the class apprised of the progress of the litigation. Nevertheless, he did by imposing a kind of double standard that has pervaded the entire process of awarding attorney’s fees and reimbursing expenses after the Agent Orange Litigation was settled.

The opportunity for demagoguery was present during every day Yannacone actively managed the Agent Orange Litigation, yet Judge Weinstein refused to recognize, respect, and reward Yannacone’s steadfast refusal to assume the role of demagogue or politicize the litigation.

Yannacone’s restraint and constant consideration for the dignity of his clients, the integrity of the Judicial System, the economic vulnerability of the corporate defendant war contractors, and his profound respect for the facts of the case stand in stark contrast with the way in which less scrupulous lawyers have comported themselves with the media in litigation which has become an object of public interest.

Whatever time Yannacone was required to spend in dealing with the media and speaking to veterans groups was the time necessary to overcome the public relations efforts of the corporate defendant war contractors, their insurance carriers, and the executive branch of the federal government each of which mounted determined opposition to the claims of the Viet Nam veterans and their families, and each of which had essentially unlimited resources to bring to bear on their task.

No less an informed observed than Judge Pratt who was the trial judge during the period that the media was most concerned with the Agent Orange Litigation testified that he found nothing in more than five years of public statements by Yannacone about the Agent Orange Litigation that in any way offended the Court or interfered with the administration of justice .
It is considered perfectly proper for a large, time billing law firm to include as part of its general and administrative overhead expenses the costs associated with public relations, advertising and promotion conducted under the euphemism “firm marketing.” According to the Court of Appeals for this Circuit, such general and administrative overhead expenses are properly reflected in the hourly rate charged for the attorneys who are employed by or partners in such firms.

Nevertheless, this Court has disparaged the essential public information and education work by Yannacone as lead counsel for the Class, claiming that his efforts were of no value to the Class. The facts demonstrate that such efforts were an integral aspect of the Agent Orange class action litigation. It prevented the Agent Orange Litigation from becoming another asbestos debacle. It promoted significant economy of judicial resources and led to an early and timely settlement in favor of the veterans.
The case could never have been settled without the unanimity of support within the Veteran community that was demonstrated years later at the fairness hearings. That unanimity of support is solely the result of the work of Victor and Carol Yannacone. Their efforts directly benefited the class and were not part of any “firm marketing effort”.

It cannot be said that Victor John Yannacone, jr. was seeking to develop a national reputation through the Agent Orange Litigation. He was already internationally renowned for the work he had done in launching what has come to be known as the Environment Movement. He had already demonstrated his prowess as a litigator in the actions against broad spectrum persistent chemical biocides such as DDT and the other chlorinated hydrocarbons of the DEATH (dieldrin, endrin, aldrin, toxophene, heptachlor) group during the 60’s. He was already an established author of a respected two volume treatise on Environmental law, the field he established as an independent legal discipline with the DDT litigation in 1966. His reputation as an expert in the area of occupational disease and the toxic effects of hazardous materials was established by 1960.

Whatever time Yannacone spent with the media or with veterans groups was time well spent solely for the benefit of the entire class of Viet Nam veterans and their families who were the plaintiffs in the Agent Orange Litigation. It was time necessary to counter the enormous public relations and disinformation machine driven by the corporate defendant war contractors that has continued to run roughshod over the rights of the best and bravest of our fellow Americans, the Vietnam combat veterans.

Yannacone’s grand strategy for Settlement

Settlement of the Agent Orange Litigation became a foregone conclusion when Judge Pratt denied The Dow Chemical Company motion for summary judgment on the Government Contractor Immunity Defense and granted the motion by Hercules Incorporated for summary judgment on the grounds that its phenoxy herbicides were essentially uncontaminated with 2,3,7,8-tetrachloro-dibenzo-p-dioxin.

Yannacone’s grand strategy had succeeded. He had scattered the hitherto consolidated forces of the corporate defendant war contractors. First he had separated them according to the extent that their phenoxy herbicides were contaminated with dioxin. Hercules Incorporated was out because it made “clean” “Agent Orange.”

Diamond Shamrock Corporation and Monsanto Company were still in the dock because they made incredibly “dirty” Agent Orange for the government. Then he separated them according to their parity of knowledge with the government about the dioxin contaminant and dioxin toxicity.

It was here that he held The Dow Chemical Company in the case. Yes they made relatively uncontaminated “Agent Orange,” but they deliberately and intentionally withheld information from the government because they were afraid of stronger pesticide regulation. They had made a business decision to cover-up a hazard to our American troops and they would now stand in the dock and explain that decision to a jury in Brooklyn.

Yannacone’s greatest success, however, was in creating a conflict among the corporate defendant war contractors that would prevent them from ever presenting a consolidated front to the Court and the public.

The Dow Chemical Company whose present day (1985) corporate ethos makes it a model corporate citizen and provides some reasonable assurance that the excesses of the 60s will not be repeated, would be forced to distance itself from Monsanto and Diamond in the public eye, and certainly before the jury. Yannacone had guaranteed that the Dow scientists who held the key to the dioxin secret would be willing, albeit reluctant, witnesses for the veterans on some of the most important issues of the litigation.

Is it any wonder that settlement of the veterans’ claims began to look like an attractive alternative to Dow, Monsanto, and Diamond Shamrock.

The real reason the corporate defendant war contractors were so eager to settle the veterans claims was that the trial of the claims against Dow, Monsanto, and Diamond Shamrock would focus national attention not just on their corporate culpability for past sins, but the even larger issues associated with liability for clean up under federal toxic and hazardous waste legislation.

Diamond Shamrock alone faced potentially billions of dollars for clean up of its dioxin contaminated area in the Ironbound section of Newark, New Jersey. Monsanto faced similarly catastrophic liability for clean up of the Missouri River bed near St. Louis; while Dow faced problems at Midland, Michigan.

Yannacone had continually demonstrated to the chemical industry since 1966 that he was capable of escalating public interest litigation into a multi front assault on negligent, careless and reckless chemical process technology.

Product liability litigation is settled by corporate defendants the size of Dow, Monsanto, and Diamond, and the settlements are paid for by insurance companies like Travelers and Aetna, only when the plaintiffs represent such a credible threat to both the companies and their insurance carriers that there is a reasonable probability of a verdict or judgment in favor of the plaintiffs which could seriously damage the defendants as business institutions and undermine the economic strength of their insurance carriers.

From the day Yannacone became publicly associated with the Agent Orange Litigation, and even to this day, he has maintained that level of credible threat. Without Yannacone’s grand strategic plan, his unconventional tactics, and his formidable Courtroom presence, the Agent Orange Litigation would have been terminated by the first motion to dismiss.

It is obvious from the initial arguments and the earliest motions that the corporate defendant war contractors and their insurance carriers did not take the litigation seriously when it was filed by Reutershan’s railroad union lawyers as just another products liability action. Certainly not $180 million dollars worth of serious consideration.

In assessing Yannacone’s contribution to the settlement and his value to the plaintiff class of Viet Nam veterans and their families, this Court should note that the Long Island Consortium, Yannacone & Associates, did not come into existence until late September 1979, only after Judge Pratt had denied the corporate defendant war contractors first major motion to dismiss the complaint.

The credible threat that drove the settlement process was Yannacone’s continued involvement with and concern the Viet Nam veterans and their families. There was always the possibility that he might still appear to raise the stakes on the eve of trial.